The Hypocrisy Threatening the Future of the Internet

The upcoming World Conference on International Telecommunications (WCIT-12) in Dubai looms as a moment of truth for the Internet’s governing rules and economic model. In all, representatives of 193 countries will come together to review the International Telecommunication Regulations (ITR) agreed in Melbourne 25 years ago.

The United States (US) government, a leading voice in the sector, is strongly opposed to any changes to the treaty (itself an update of an earlier agreement), arguing the Internet has nothing to do with ‘traditional’ telecommunications, and – more ominously – that freedom is at stake. In contrast to this ‘no changes proposed’ plan, other member states are likely to bring different perspectives and ideas to feed into discussions at the 11-day December event, which will be moderated by the International Telecommunications Union (ITU), a specialized United Nations (UN) agency. The fight is growing increasingly vocal, while raising questions of concern to all about the overwhelming power of the US in relation to the Internet and the need for structural re-balancing.

Before looking at the critical proposals to be discussed in Dubai, as well as the arguments now flooding the public sphere, however, let’s first survey the battlefield where this war is raging.

The ITU Secretariat itself has no power to propose amendments to the ITR, nor has the organization expressed a desire to control the Internet. The ITU, as an institution, has the power to adopt amendments, on the basis of consensus of the membership. As a UN body, the ITU’s DNA is rooted in notions of human rights and human development, alongside a technical cooperation mandate. None of this would allow room for a power grab. In fact, the ITU is focused on reaching out to voting member states, as well as other concerned players, in order to facilitate an honest, fair-play approach to international telecommunications regulation.

All member states have had the right to circulate proposals to be discussed in Dubai. Each has also been encouraged to launch national consultation processes prior to WCIT-12. The ITU itself has shared preparatory documents online, and initiated a public forum to collect comments and proposals from any interested party. The agency represents a large and open coordinating point where not only governments, but also over 500 private sector entities, members of academia and civil society have been preparing the debate to come. It is noticeable, however, that the most influential non-government player – Google – has never sought to become a consulting member, and in fact has declined several invitations from the ITU Secretariat to do so. At this stage, nobody is able to say with any certainty which proposals, often dramatically opposed, will be adopted at the conference, with any treaty amendments requiring a simple majority.

Five key issues form the focus of international wrangling ahead of WCIT-12: net neutrality, payment principles for senders and receivers, control, cyber security and censorship, even though the last three are not on the agenda. Despite the headline-grabbing implications of the latter, however, it is the first two that shape as perhaps the most critical to the future of the Internet as we know it.

At the most basic level, ‘net neutrality’ refers to non-discrimination in transiting data packets. The Internet today is going through critical transformations that threaten to create, if left unaddressed, issues of even greater magnitude. For years, data delivery was based on a ‘best effort’ principle – every connected network operator would do their best to transfer data, with no timing guarantee, defined hierarchy, nor specific quality requirement. Two major challenges, however, are now transforming the industry.

In the context of data, speed is money: all web-based businesses are well aware that speed improves end-user experience, and boosts revenues. On top of constant increases in traffic, video streaming has also emerged as a significant bandwidth consumer. Fierce competition is pushing the market to secure ‘quality of service’ guarantees around resolution, smooth play and start-up time. A portion of the data circulating today over the Internet will increasingly be subject to contractual commitments, and will need, therefore, to secure top-priority laissez-passer. Step by step, the speed issue is creating a split between ‘economy class’ data, and ‘premium’ and ‘first class’ data. Those with the money to pay will be able to afford the best speed and quality. For others, it will be a case of ‘we’ll take care of you when we have the available bandwidth.’

Arbitrage over which data goes first is an issue impacting all Internet users worldwide. Previously, this was not the case (and no one could complain) due to the ‘best-effort’ approach. It is clear to many of the Internet industry’s major players dealing with Content Delivery Networks (CDNs), Front End Optimization, a new protocol challenging the 30-year old Transmission Control Protocol and other emerging technologies, that the next competitive battleground is quality, and therefore the need for reserved bandwidth.

This will dramatically change the use of the Internet, as well as the revenue share between players. Another significant element of the ‘speed battle’ relates not to data flows, but to infrastructure capacities. We know that emerging and developing economies are already slow on their own infrastructure development, and facing challenging conditions to identify additional funds to build necessary facilities and purchase equipment to increase broadband access. A parallel infrastructure divide between broadband and non-broadband countries will exacerbate the split in data ‘classes.’ Similarly, revenues will inevitably follow technology – more to the rich, less to the poor.

Many proposals are on the table ahead of WCIT-12, and it would be meaningless to look into each, as only a few have a chance to achieve a voting majority. One idea by ETNO, the 50-member European Telecommunications Network Operators’ Association driving broadband growth in Europe, however, has gained some support and visibility from the ITU membership. African and Arab states have made proposals equivalent in intent, albeit using different language. ETNO's idea concerns Article 3 of the Melbourne treaty:

“Operating Agencies shall endeavor to provide sufficient telecommunications facilities to meet requirements of, and demand for, international telecommunication services. For this purpose, and to ensure an adequate return on investment in high bandwidth infrastructures, operating agencies shall negotiate commercial agreements to achieve a sustainable system of fair compensation for telecommunications services and, where appropriate, respecting the principle of sending party network pays.”

A non-voting member of the ITU, ETNO can, like any other entity, defend and push its ideas to all member states. The organization’s argument appears reasonable in terms of principle, but is unacceptable to the US. A ‘paying sender’ principle would place the US in a premium position as a payer. The current situation is actually the opposite: in effect, a ‘paying receiver’ system. When, for example, a citizen of Botswana uses Google’s search engine, the relevant operating agency of Botswana will ultimately have to pay the operator sending the data. Consequently, when a massive spam campaign is enacted, the consumption of bandwidth is assigned to the receivers. Few people realize that the largest share of spam is sent from servers based in the US. Naturally, these servers are paid for the service. Yet, this also creates a ‘consumption of bandwidth’ for the receivers, resulting in greater usage charges.

Critically, the connections between more than 40,000 autonomous systems (nodes/servers) at a global level are ruled by contractual agreements between operating agencies. All are linked to a national territory and must deal with the regulations in their home jurisdiction. The commercial agreements between operating agencies are secret. It is very difficult – if not impossible – for a journalist, academic or public official to access such information. While video pricing is known, we still have no clear picture of the revenues flowing from the interconnections between bandwidth operators.

Switching to a model that combines both principles – that is, where sending and receiving parties each contribute to infrastructure costs – would modify the distribution of revenues between operating agencies. Most significantly, American actors would have to pay other national operators. Part of the redistribution could be used to assist emerging and developing countries develop broadband infrastructure, reducing the technological deficit and boosting economic growth. Google – amongst other big senders – would be unable to continue using freely ‘collective global capital’ (the worldwide infrastructure network) for which it did not spend a penny. The fact that Google is building its own CDN centers is not comparable, albeit the company’s actions may indirectly help to resolve data ‘traffic jams’ by locating content closer to end users, and reducing the ‘journey’ of data packets. Amending the ITR to introduce a new payment approach would be revolutionary – a revolution not welcomed, however, by US interests.

Listening to the assembled US voices preaching against any changes at WCIT-12, a central argument is based around the notion of defending the Internet as a pure and perfect example of a democratic, decentralized system, allowing all users a controlling stake in some kind of balanced and participatory wonder. The old credo by David Clark in 1992 – “we reject presidents, kings and voting; we believe in rough consensus and running code” – is part of the web wonderland hagiography, but not reflective of today’s Internet reality. Even The Economist appears blind to the fairytale: “for something so central to the modern world, the Internet is shambolically governed. But sometimes chaos... is not disastrous: the Internet mostly works. And the shambles is a lot better than the alternative – which nearly always in this case means governments bringing the Internet under their control.” The Internet works because it operates according to agreed principles, rules and centralized control – one must maintain a clear-eyed perspective.

Amongst the voices speaking in foreboding terms of potential WCIT-12 outcomes is Joe Waz, who co-wrote a blog in the Huffington Post with Phil Weiser, former Senior Advisor for Technology and Innovation to the National Economic Council’s Director at the White House, and now Dean of Law at the University of Colorado. “The least understood or appreciated factor in the Internet's growth and success is its amazing capacity for self-governance, and its ability to resist the traditional tools of government regulation.” This might be true when speaking about a web where users can create and participate in unlimited communities, websites or blogs, but this does not equate to control over the only critical command center of the Internet – its rooting system. Without the right IP, domain and link, the Internet goes nowhere.

Despite the fact that the US government never really owned the Internet, it ‘offered’ control of its backbone and policy-generating function to a private Californian association – the Internet Corporation for Assigned Names and Numbers (ICANN) – that has engaged in activities representing “US governmental regulation in all but name” according to Michael Froomkin.

The first question one must ask is: how can you give something away that doesn’t belong to you? The second: how do you maintain control once you’ve handed it over to friendly private entities? By controlling the private entities one would assume! Having done so, the cherry on the cake would be announcing to the public at large that the transfer of control from governmental to private hands should be viewed as a great success story. This is what happened in 1998, despite fierce resistance from Jon Postel. As one of the founding fathers of the Internet and ‘ruler’ of its early governance structure, Postel attempted to save the Internet from falling into the control of US government hands. Postel died, however, just weeks before the White House Special Advisor heading an ad hoc interagency task force on electronic commerce was able to claim full victory over the academics who were, until then, managing the central rooting system.

Postel entered the Internet Society’s (ISOC) Hall of Fame in 2011, along with Vint Cerf, Google’s ‘Chief Internet Evangelist’ and cardinal des basses oeuvres, now a key player in campaigning for the regulatory status quo. Ironically, Postel was nominated alongside Cerf. Similarly ironic – and tragic – was the fact that Ira Magaziner, the White House Special Advisor once depicted as Hillary Clinton’s ‘Rasputin’, deliver a speech at Postel’s memorial ceremony in Los Angeles in 1998, at the same time the US government officially transferred Internet governance powers to ICANN. Both Cerf and Magaziner were instrumental in the take-over. Foreseeing these developments, Postel himself had turned to the UN and ITU, but to no avail.

Constructing a fairytale usually requires a cast of ‘bad guys.’ Vladimir Putin declares that WCIT-12 should address Internet governance, and you get the plot line that Russia wants to control the Internet and its infrastructure networks. Ditto China. Finally, add the influence of Dr Hamadoun Touré, ITU’s Malian Secretary-General who received his PhD in the former USSR, to the mix. Now we have all the necessary threads to point to a thinly-disguised attempt by the dark forces of totalitarianism to seize cyber control in the best Cold War style. What a nice (paranoid) story – supported by no substantive evidence.

This brings us to the fourth issue identified at the outset – cyber security. Each of the US, Israel and Japan have developed official cyber military doctrines, though the US is by far the country with the largest budget devoted to digital or cyber war resources. Like air or naval power, the Pentagon has now added cyber power to its five major domains of military action. Eleanor Saitta, Technical Director of the International Modern Media Institute, has warned about the increasing militarization of the Internet. "Even as the 193 nations of the ITU meet in December, some will be silently unleashing state-sponsored cyber attacks upon each other, as well as mass surveillance and intervention targeting their own citizens".

The fifth issue is censorship. As most are aware, any country today has the ability to control its own cyberspace, blocking or censoring any of its citizens. At the same time, censorship of Internet-based speech has proven difficult, as recent global tumult toppling repressive government regimes has shown. A Russian and Chinese proposal for a code of conduct serves to both challenge the US, as well as attempt to add legal weight to Moscow and Beijing’s national censorship toolkits used to restrain citizen freedom. “It is obvious that this kind of proposal will have no support from the developed countries” acknowledges Alix Desforges, from the Institute Français de Géopolitique at Université Paris 8. “Today, countries prefer to sign bilateral agreements on security issues. We’re miles away from international cooperation.”

Touré himself emphasizes that according to the prevailing international regulatory framework, such national “restrictions are permitted by article 34 of the ITU’s Constitution, which provides that the 193 member states reserve the right to cut off, in accordance with their national law, any private telecommunications which may appear dangerous to the security of the state, or contrary to its laws, to public order or to decency. And the International Telecommunications Regulations cannot contradict that provision, either.”

With the clock ticking down to Dubai, Cerf is very busy coordinating a global campaign against any revision of the ITR. Only a few days ago he was video-linking with Sharan Burrow and Paul Twomey before an audience of international correspondents based in London. Twomey is a former ICANN CEO and President (2003-09). In 1997, as CEO of the National Office for the Information Economy, an Australian government unit developing Internet policy, he befriended Magaziner, leading to his initial involvement with the nascent ICANN. The two later partnered in a consultancy called Argo P@cificLondon. Burrow, also an Australian, is the Secretary General of the International Trade Union Confederation (ITUC) – strangely, a group now fighting against revision of the Melbourne treaty.

“An unfettered internet, free of political control and available to everyone could be relegated to cyber-history under a contentious proposal by a little known United Nations body” writes the Equal Times, an online publication of the ITUC. Burrow has launched a ‘Stop the Net Grab’ campaign, which has registered a little over 1,000 supporters (as of 18 November). She also convinced Kumi Naidoo, Executive Director of Greenpeace International, to co-sign a letter to the UN Secretary General, Ban Ki-moon, urging his intervention to maintain a “multi-stakeholder approach” – a view endorsed and supported by Cerf, who has denied the legitimacy of governments in the context of Internet matters. According to Cerf, the Internet should be governed by rules set by “the Internet community,” which rightly override national regulations. Such an approach would need much clarification. For instance, what would be the representative principles of such a community?

The grey zone where US officials and people like Cerf mingle is larger than meets the eye. There are many (disconcerting) examples. Take the Congressional hearing back in May, which called upon the US to defend its position over the Internet and led to the approval of a bipartisan resolution opposing proposals in a “UN Forum.” Before passing the resolution, three speakers participated in the hearing: Vint Cerf, Sally Shipman Wentworth, a senior manager at ISOC and a former State Department Official, and David A Gross, also a former State Department official turned lobbyist, representing all the major private sector players (including Google). Another example of Google’s omnipotence is an article by a Google employee (Patrick S Ryan) published in the Stanford Technology Law Review, which strongly attacks the WCIT-12 process, the ITU and any envisaged reform of the ITR.

Ultimately, all Cerf’s efforts may only end up focusing more attention on the current ‘non-democratic’ nature of Internet governance, as well as the associated inequalities of the business side of the web. They may also raise legitimate concerns over Google’s power to finance behind-the-scenes maneuvering to preserve a favorable regulatory environment. Google is a giant of email, personal data, mobile telephony, content diffusion, cloud computing, the digitalization of books, intellectual property rights, search engines and advertising revenues, aggressively aggregates media content, and exploits global telecommunications network infrastructure without contributing to costs. A handful of countries like Germany and France are now launching legal action on behalf of their content producers and Internet users to stop these strong-arm tactics.

As WCIT-12 approaches, it is clear that telecommunications networks are entering the fray, ready to fight for their own future. On the media front, the issue goes far beyond the fact that over 80 percent of global digital revenues flow to Google and Facebook. Democracy requires independent media. Almost all are now lost to the law of the click for the sake of being seen by Google News, while dreaming of catching a scrap of Google’s leftover advertising revenues. We all know about these developments, but feign to ignore them. Even amongst the most prominent human rights defenders one can observe a surprising attitude: every month Amnesty International UK’s Head of Marketing spends approximately US $10,000 to secure key words to link to the NGO’s website. One can only wonder how much money Amnesty International contributes on a global level to Google’s deep pockets, which bulged to the tune of nearly US $38 billion in revenue in 2011 alone.

Democracy is at stake, when many of us are asleep or comforting ourselves with benign fairytales.